Examination for Discovery Caselaw Update: Scope of Proper Questions
Two useful, albeit unreported, cases were recently provided to me dealing with objections to two fairly common examination for discovery questions and dealing with their propriety.
In the first case (Blackley v. Newland) the Plaintiff was injured in two motor vehicle collisions. In the course of examining the Defendant for discovery, the Plaintiff’s lawyer asked a series of “do you have any facts known or knowable to you” questions addressing the specific allegations set out in the Pleadings such as:
- do you have any facts known or knowable to you that relate in any way to whatever injuries Mr. Blackley received in this collision?
- do you have any facts known or knowable to you that relate in any way to what pain or suffering Mr. Blackley has had because of this collision?
At trial, the Plaintiff proposed to read this series of questions and the answers that followed to the Jury. Mr. Justice Williams held that while the exchange should not go to the jury as its prejudicial effect outweighed its probative value, the series of questions was entirely appropriate in the context of an examination for discovery. Mr. Justice Williams provided the following comments:
 Speaking generally, in this case, I do not find that the questions asked at the examination for discovery are improper. They can be said to have been substantially informed by the statement of defence that was filed by the defendant. As is usual, that statement of defence is replete with denials and positings of other alternative propositions.
 The examination for discovery conducted by plaintiff’s counsel was obviously shaped in part as a response to the pleadings of the defendant and was an appropriate use of the examination process, specifically to discovery the defendant’s case.
In the second decision (Evans v. Parsons) the Defendant put a medico-legal report to the Plaintiff and asked the broad (and arguably compound) question “Okay. Was there — the facts in Dr. Aiken’s report, was there anything that struck you as incorrect?“. The Plaintiff’s lawyer objected to the question resulting in a chambers application. The Defendant argued the question was fair and further that the limited two hour discovery in Rule 15 matters allowed this type of a short cut question.
Master Caldwell disagreed finding the question was too broad and vague. In doing so the Court provided the following reasons:
All right. Thank you. Applications to have a subsequent examination for discovery done specifically to address what I do find as an extremely general and vague question which was asked and objected to at the first discovery. That comment probably leads one to surmise the application will be dismissed, at it will. There was an opportunity to specify what facts were being referred to, and counsel refused to further qualify. There’s a reason for short discoveries in rule 15-1 cases. Two hours were granted. If this was an important question, it could have been addressed earlier in the discovery. I don’t, in the circumstances of the context of the question, believe it to have been a fair question to the plaintiff. It was far too general, and, as I say, defence counsel refused the opportunity to further qualify or narrow it. I’m not going to force the Plaintiff to answer such a general question. Application is dismissed. Costs to the Plaintiff.
To my knowledge these judgements are not yet publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests copies.